A Seven judge bench of the High Court at Andhra Pradesh a majority of 5:2 has struck down the A.P. Reservation in Favour of Socially Educationally Backward Classes of Muslims Act, 2007 (“the Act”) as unconstitutional describing the Act as “unsustainable” and “religion-specific”. The judgment is available
here. Amongst other reasons, the Court reasoned that the Act potentially encourages religious conversions. Zoya Hasan in her book “Politics of Inclusion” has suggested that fear of religious conversions (though not supported by statistics) is a major factor inhibiting extension of affirmative action to minorities.
The majority judgment was delivered by Chief Justice A R Dave. Justice T. Meena Kumari gave a separate and concurring judgment allowing the writ petitions for different reasons. B. Prakasha Rao, J. and D.S.R. Varma, J. provided the minority view.
The Act provided four percent reservation to certain backward sections of Muslims by introducing an additional “E” group in the existing Backward Classes enjoying reservation, first through an ordinance and then the legislation. The Court severely criticized the report of the A.P. Commission for Backward Classes (“APBC”) which formed the basis of the government action for its procedural errors and glaring irregularities. The Commission failed to come up with definite criteria to identify the backward classes among Muslims.
The High Court further held that the quick survey and the fast track method employed by the APBC Commission was faulty and in substance, amounted to a ‘hit and run method’ and therefore cannot be approved of. The Court said that it was deplorable that the Commission was not even aware of the population of the groups of Muslims selected for inclusion in the E category among the Backward Classes and the government to provide and objective basis for its action. I
As per Justice T. Meena Kumari, “the APBC Commission has acted in a hasty manner and without any scientific survey, I am of the opinion that the data collected is not sufficient for the Government to come to the conclusion that specific classes of Muslims can be classified as ‘backward class’ for the purpose of Articles 15(5) and 16(4) of the Constitution of India. The Commission has not proceeded on correct lines to assess the social and educational backwardness as indicated in other cases or has followed any criteria for such assessment. In the absence of any such material, it has to be held that the State Government has utterly failed to discharge its onus of proof to establish that the reservations are for socially and educationally backward classes of citizens and that the enactment is based on sufficient material to support the classification. If the court perceives that the identified classes exist, then the Court will uphold such law for the purpose of doing social justice, but in the instant case the exercise of identifying specific group of backward classes is not rational; therefore the Court cannot uphold the law made by the State. The same has to be struck down for want of sufficient material or appropriate data.” Therefore, it appears that where the State Government is able to discharge the onus of proof, reservation for socially and educationally backward Muslims may not be unconstitutional. However, what remains uncertain is the extent of burden of proof required to be discharged, especially given the Sachar Committee findings.
It was the third attempt on the part of the Andhra Pradesh Government to provide a quota for Muslims which has been repeatedly struck down by the High Court as unconstitutional. The Andhra Pradesh Government has decided to file a Special Leave Petition against the judgment in the Supreme Court.
